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April 10, 2001

TWO-TIER JUSTICE: The Final Stop

On Appeals, the Poor Find Little Leverage

By JANE FRITSCH and DAVID ROHDE

Ruth Fremson/The New York Times
Vincent Malerba, a prisoner who helps inmates prepare appeals when they feel their court-appointed lawyers have not done enough.

Related Articles

For New York City's Poor, a Lawyer With 1,600 Clients (April 9, 2001)

Legal Help Often Fails New York's Poor (April 8, 2001)

This is the last of three articles examining the representation that New York City offers to indigent defendants. The first article dealt with homicide defendants, and the second dealt with the lawyers who handle hundreds of cases.

Readers' Opinions

Join a Discussion on Issues in Law Enforcement


Ruth Fremson/The New York Times
Legal Aid Society lawyers at offices in the Bronx holding a meeting to setting up their schedules. The society's staff of appeals lawyers has shrunk by a third since 1994.


For indigent defendants who believe that justice was not done in New York City's trial courts, appeals courts offer a measure of hope. Trials are reviewed, errors may be detected, convictions may be reversed.

The likelihood of success depends, at least in part, on the skill and effort of the lawyer appointed to handle the appeal.

But just as there are problems with lawyers who defend the poor at trial, there are problems with the lawyers appointed to file appeals. Some work for nonprofit organizations and are paid salaries. But many work on their own for low pay and with no supervision. Some have scant experience in criminal law.

Twenty percent of the 2,500 indigent defendants who need lawyers each year to handle their appeals are assigned to private attorneys who are paid an average of $2,000 per case, start to finish, for work that can take years. Many get no more than the $1,200 standard fee set by state law, which allows for a maximum of 30 hours of work at $40 an hour. A private lawyer would charge a paying client $15,000 to $50,000 to handle an appeal.

About half the cases are assigned to staff lawyers at the Legal Aid Society, which spends about $18,000 per appeal.

Thirty percent are assigned to three small nonprofit groups that spend about $12,000 per case. Two of the groups were created by Mayor Rudolph W. Giuliani to reduce the influence of the Legal Aid Society after its lawyers went on strike in 1994.

Like trial attorneys, lawyers in private practice who do appeals for the indigent have complained bitterly in recent years about pay they say is far too low.

A rigorously mounted appeal involves reading and annotating a trial transcript that can be 500 to 8,000 pages, investigating whether the trial lawyer overlooked witnesses or evidence, researching the law and writing the appeal itself. Once the appeal is filed, the lawyer must respond to the prosecutor's arguments and, in some cases, make oral arguments before appeals courts.

"To suggest that an appeal can be properly written in 30 hours is frankly ludicrous," said Robert E. Carrigan, a private lawyer who teaches at New York Law School. "In an average-to-complex case, it's closer to three times that." Mr. Carrigan handled the appeals of about a dozen indigent defendants last year.

Low pay discourages experienced appeals lawyers from taking cases, leaving the work to younger, less qualified lawyers, Mr. Carrigan said. "A lot of newly admitted attorneys who work from their homes, who are raising families, take appeals cases as a convenient second income for the family," he said. "It's not a good situation."

Private lawyers who want court assignments for appeals work must have experience in 10 criminal cases, but not necessarily in appeals work.

Jay L. Weiner, a lawyer who did appeals work for prosecutors in Brooklyn and Queens, said the quality of the appeals filed by the private lawyers who opposed him varied widely. Some were notorious among prosecutors for doing shoddy work, he said.

"When I was a prosecutor, sometimes I had to respond to a really bad brief from appointed lawyers," he said. "I hated those cases because the defendant had no control over who represented him, and with such a bad brief, he had no chance either."

Mark Dwyer, the chief of the appeals bureau in the Manhattan district attorney's office, said appeals lawyers at Legal Aid and the other nonprofit groups give "excellent representation." With private lawyers, "it's more hit and miss," he said. "You have the excellent ones and some who aren't so good."

For defendants, it's the luck of the draw. They must accept whoever is assigned by the court. And for some important parts of appellate litigation, some defendants have no lawyers at all.

The case of Humberto Fernandez, a Bronx man convicted of murder in 1996, illustrates the range of hurdles an indigent defendant can encounter under New York City's system for providing appellate lawyers for the poor.

In a few terse paragraphs last October, the Appellate Division of State Supreme Court rejected Mr. Fernandez's claim that he had been falsely convicted of murder. It was an unremarkable decision among hundreds just like it last year. And it gave no hint of the complexity of a case that sent a man with no criminal record and an alibi to prison for 15 years to life.

The case against Mr. Fernandez was weak from the beginning. He was accused of shooting Carlton Bennett, 16, whose body was found on a street in the Bronx in 1993. Mr. Fernandez was arrested seven weeks later. A guest at a nearby party in the Bronx that night had told the police that he saw Mr. Fernandez try to steal a gold chain from a man in a hallway and then shoot at him.

But there was another version of events that prosecutors did not reveal for more than a year. Another guest at the party had told the police that she saw a man put a gun into his waistband seconds after the shooting. At his side was his best friend, Miguel Martinez the prosecution's main witness, the one who had blamed Mr. Fernandez.

The prosecutor requested a mistrial, saying he was no longer sure he had the right man. Mr. Fernandez was released, but the case lingered for two more years as prosecutors tried to shore it up. It finally went to trial in 1996.

Mr. Fernandez's appointed lawyer, Edward R. Dudley Jr., had had the foresight to get a sworn statement from an alibi witness who had moved out of New York during the years the case was pending. The witness said he had seen Mr. Fernandez in his car with his girlfriend and their child about the time of the murder, and at a different location. In his opening statement to the jurors, Mr. Dudley promised that they would hear that alibi statement.

The prosecution put Mr. Martinez, the main witness, on the stand, and he repeated his claim that Mr. Fernandez had shot the victim. But he was forced to concede that he had been drunk at the time, had been smoking marijuana and had been carrying a gun himself.

Mr. Dudley presented only one witness, the party guest who had seen Mr. Martinez standing next to his friend, who had been holding a gun. Mr. Dudley never had the alibi statement read to the jury. In his closing argument, he never mentioned the alibi or explained why he had not produced it.

Continued
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